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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA


UNITED STATES OF AMERICA,
Plaintiff,
v.
MIR ISLAM
Defendant.

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Crim. No. 15-cr-67 (RDM)


UNDER SEAL

DEFENDANTS MEMORANDUM IN AID OF SENTENCING


Defendant Mir (Josh) Islam stands before the Court to be sentenced pursuant to his guilty
plea to a three-count information. As explained below, Mr. Islam has matured immensely during
his 34 months of incarceration and has taken great strides to atone for his behavior and overcome
the mental health issues that contributed to it. Accordingly, it is respectfully submitted that a
sentence of time served and 36 months of supervised release would represent a sentence that is
sufficient, but not greater than necessary to meet the purposes of sentencing reflected in 18 U.S.C.
3353(a). Such a sentence would be longer than many if not most sentences in similar cases, and
would adequately punish conduct by an immature and mentally-ill teenager who, by the
governments own admission, has earned a departure from the applicable guidelines range.
LEGAL STANDARD
The fundamental requirement of federal sentencing is that it result in a sentence sufficient,
but not greater than necessary, to comply with the purposes set forth in 18 U.S.C. 3553(a)(2). In
accomplishing that task, the sentencing court must consider: (1) the nature and circumstances of
the offense; (2) the history and characteristics of the defendant; (3) the need for the sentence
imposed to reflect the seriousness of the offense, to provide just punishment for the offense, to

afford adequate deterrence to criminal conduct, to protect the public from further crimes of the
defendant, and to provide the defendant with needed correctional treatment; (4) the kinds of
sentences available; (5) the Sentencing Guidelines and related Sentencing Commission policy
statements; (6) the need to avoid unwarranted sentencing disparities; and (7) the need to provide
restitution to any victims of the offense. These requirements reflect the uniform and constant
federal judicial tradition of considering every convicted person as an individual and every case as
a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and
the punishment to ensue. Gall v. United States, 552 U.S. 38, 52 (2007) (quotation omitted).
ANALYSIS
I.

Further Imprisonment Is Not Necessary to Meet the Goals of Sentencing Under Section
3553(a)
A. Sentencing Guidelines and Sentencing Commission Policy Statements
As a matter of administration and to secure nationwide consistency, the Sentencing

Guidelines should be the starting point and the initial benchmark for determining the defendants
sentence. Gall, 552 U.S. at 49. In the ordinary case, the Commissions recommendation of a
sentencing range will reflect a rough approximation of sentences that might achieve 3553(a)s
objectives. Kimbrough v. United States, 552 U.S. 85, 89-90 (2007) (quoting Rita v. United States,
551 U.S. 338, 447 (2007)).
Here, the Sentencing Commissions guidelines and policy statements strongly support the
defense recommendation of time served, which with good time credits amounts to an effective
sentence of 37 months. Both parties and the PSR agree that the correct guidelines range is 41 to 51
months. But the government has also filed a motion pursuant to USSG 5K1.1, recognizing that
Islam provided substantial assistance to authorities. Thus, the governments request for a sentence
in the middle of the guidelines range conflicts with the policy statements stating that courts should
2

make an appropriate reduction from the guidelines range based on a list of factors related to the
defendants cooperation. USSG 5K1.1(a) (emphasis added); see also id. at 5K1.1 (describing
purpose of provision as allowing a court to depart from the guidelines) (emphasis added).
According to data compiled by the Sentencing Commission, the average downward departure for
5K1.1 motions is 52.6 percent from the bottom of the original guideline rangeover five times
the reduction requested by Islam. U.S. Sentencing Commission, 2014 Sourcebook of Federal
Sentencing Statistics, at Appendix A, Table A-1. Thus, by any measure, the less than ten percent
departure from the guidelines range requested by the defense is an appropriate reduction that
furthers the policies underlying the guidelines and rewards defendants for the often life-threatening
assistance they provide to the government.
B. Nature and Circumstances of the Offense
The government rightfully characterizes the offenses in this case as serious.

They

encompass three basic crimes: (i) doxing, or the posting of personally-identifying information
such as dates of birth, social security numbers, and fraudulently-obtained credit reports online;
(ii) swatting, or the harassing of individuals through false reports to 911 of emergency situations
with the intention of causing a dangerous invasion of the persons homes by heavily-armed police;
and (iii) the severe and intrusive harassment of A.R.T., an individual with whom Islam became
infatuated, including a swatting incident that resulted in the closure of her university. These
crimes exploit the increasingly digital nature of peoples lives to invade their privacy and subject
them to harassment and even the risk of violence. Swatting in particular is a reprehensible act
that endangers the lives of both police and innocent victims and wastes scarce public resources. As
reflected in the undisputed guidelines range of 41-51 months, these crimes deserve of a period of
incarceration.

Without minimizing the serious nature of these crimes, however, there are factors for each
offense that are mitigating to a certain degree or place the offense in a necessary broader context.
With regard to the doxing offenses, for example, the webpage created by Islam and his coconspirators, The Secret Files, was only online and accessible online for three short periods of 8,
20, and 20 days each,1 and there is no evidence that any of the information was used by members
of the public. PSR 21-27. Moreover, although Islam and his co-conspirators indisputably broke
the law by posing as third-parties to obtain credit reports and then posting the reports online, the
general practice of doxing public figures is not actually illegal if the information is obtained
legally. See Ex. 1 (Christine Pelisek, Doxxing: Its Like Hacking, But Legal, THE DAILY BEAST
(March 13, 2013)) (reporting on the Secret Files website created by Islam and his co-conspirators,
describing it as a classic case of doxxing and stating that [i]n many cases, its not even illegal).
This veneer of legality, especially as perceived by the immature minds of the teenage coconspirators, should be taken into account. Finally, the co-conspirators motivations reveal a
misguided but public-minded spirit and desire for attention not uncommon among teenagers. For
example, in one of their most notorious hacks, Islam and his co-conspirators temporarily disabled
4chan.com, a popular image-sharing website where users regularly traded jailbait photos of
young girls, because Islam thought everyone on 4chan was a child molester. Ex. 2 (Mat Honan,
Cosmo, the Hacker God Who Fell to Earth, WIRED (September 11, 2012)) (quoting E.T., a coconspirator known as, Cosmo the God). Similarly, in a farewell statement on their Exposed
website, the co-conspirators quoted extensively from the farewell message of another prominent
group of hackers, Lulz Security, issued in 2011 on George Orwells birthday:

Although the second and third of the periods ended with a law enforcement request to take the site
offline, the first period ended voluntarily and was accompanied by a farewell message.
4

While we are responsible for everything that The Lulz Boat is, we are not tied to
this identity permanently. Behind this jolly visage of rainbows and top hats, we are
people. People with a preference for music, a preference for food; we have varying
taste in clothes and television, we are just like you. Even Hitler and Osama Bin
Laden had these unique variations and style, and isnt that interesting to know?
The mediocre painter turned supervillain liked cats more than we did.
Again, behind the mask, behind the insanity and mayhem, we truly believe in the
AntiSec movement. We believe in it so strongly that we brought it back, much to
the dismay of those looking for more anarchic lulz. We hope, wish, even beg, that
the movement manifests itself into a revolution that can continue on without us.
The support weve gathered for it in such a short space of time is truly
overwhelming, and not to mention humbling. Please dont stop. Together, united,
we can stomp down our common oppressors and imbue ourselves with the power
and freedom we deserve.
So with those last thoughts, its time to say bon voyage. Our planned 50 day cruise
has expired, and we must now sail into the distance, leaving behind - we hope inspiration, fear, denial, happiness, approval, disapproval, mockery,
embarrassment, thoughtfulness, jealousy, hate, even love. If anything, we hope we
had a microscopic impact on someone, somewhere. Anywhere.
Thank you for sailing with us. The breeze is fresh and the sun is setting, so now we
head for the horizon.
Ex. 3 (Jason Mick, LulzSec Departs, Fires Parting Shot 812,000 User Accounts Leaked, Daily
Tech (June 26, 2011) (words copied by Islams group in italics); see also PSR, 23 (quoting Islams
farewell message). Like the LulzSec hackers, Islam and his co-conspirators broke the law and
must be punished. However, the fact that they were teenagers reflecting an immature yet principled
mindset common in the hacker community softens the edges in the governments portrayal, and
should be taken into consideration.
Similarly, although Islam and his co-conspirators repeated swatting of celebrities and
public officials was extremely traumatic and dangerous for their victims, there are additional
circumstances that also help to put this crime in context. Specifically, in the online gaming
communities in which Islam and his coconspirators practically lived and breathed, swatting was an
unfortunately common tactic used by competitive gamers to harass their opponents during or after

online matches. See Ex. 2 (Mat Honan, Cosmo, the Hacker God Who Fell to Earth, WIRED
(September 11, 2012)); see also Real SWAT Team Raid Shooting Gamer Live on Twitch,
YOUTUBE, available at https://www.youtube.com/watch?v=Dzav_Fjlz1M (last accessed July 7,
2016);

10

Streamers

Get

Swatted

Live,

YOUTUBE,

available

at

https://www.youtube.com/watch?v=TiW-BVPCbZk (last accessed July 7, 2016).


Indeed, a member of the charged conspiracy here nonchalantly reported being subjected to
both doxing and swatting on multiple occasions as a result of his online gaming activities:
[E.T.]s name and address his documents, or dox as hackers know them
have long been published online. And its meant hes been a target for both
vengeance and lulz just, you know, because hes Cosmo the God and one of the
more notorious social engineers around.
Someone also swatted my house, he tells me, smiling. It happens a lot to me.
Well, the SWAT team was only once at my house, but lots of time with the local
police department. Swatting is a vicious prank where a hacker uses an internet
call system to report a hostage situation, which scrambles local law enforcement to
the victims doorstep.
Through AOL, you can use AT&T Relay to call the SWAT. Its for handicapped
people. You have to sign up, but its easy to sign up. You just instant message the
username AT&T Relay and then 911. They ask whats your location, the
emergency. Thats what they did to me. Thats what they did to my school too,
because theres less ways of getting caught.
[E.T.] shrugs at this, like its all perfectly normal stuff for a teenage boy. And the
thing is, in 2012, it is perfectly normal for a bored teenage boy on the edge of
delinquency. Instead of egging cars and swinging bats at mailboxes, hes breaking
into e-mail accounts.
Id. Again, this does not excuse or condone the use of swatting by E.T. and Islam, which wasted
public resources and exposed their victims to dangerous and traumatizing encounters with heavilyarmed police. However, it does help explain how doxing and swatting came to be viewed as
normal by teenagers immersed in this new online world, and thus why it was seen by Islam and

his co-conspirators in their immaturity as an acceptable prank to make political statements or


garner attention for their website.2
Finally, the government rightfully describes Islams cyberstalking of A.R.T., which
subjected her to emotional distress, anxiety, and fear for her safety, as extremely serious. However,
it is significant that at the time, Islam was suffering from untreated obsessive-compulsive disorder
(OCD), which fueled his obsession for A.R.T. and drove him to try to contact her through any and
all means. As asserted in his sole objection to the PSR, Islam never intended to harm A.R.T. in any
way, and certainly did not attempt to intimidate her, as the government suggests. Gov. Mem. at
13. Moreover, Islam believed at the time that he had communicated and developed a relationship
with A.R.T. through weeks of online conversations, causing him extreme confusion and anxiety by
her refusal to interact with him in the non-virtual world. A.R.T. denied ever communicating with
Islam, and told authorities she has little to no online life. If that is true,3 then it is highly likely that
Islams other co-conspirators pretended to be A.R.T. specifically to toy with him, knowing he had
a fragile mental state at the time. Indeed, one of Islams co-conspirators reported to the FBI that he
believed that to be the case because these associates liked to mess or fool around with Islam.4
Thus, while in no way excusing his conduct, Islams obsession with A.R.T. and harassing attempts

In addition to being perceived as a normal prank by Islam and his coconspirators at the time, it
is also noteworthy that swatting, like doxing, was not a violation of federal law in all circumstances.
See, e.g., Ex. 5 (Press Release, Office of Representative Katherine Clark, Clark bill aims to combat
dangerous swatting hoaxes (Nov. 18, 2015) (While federal law prohibits using the
telecommunications system to falsely report a bomb threat hoax or a terrorist attack, falsely
reporting other emergency situations is not currently prohibited.)).
2

A document produced in discovery suggests that the FBI agents who interviewed A.R.T. believed
she may have been untruthful about her internet usage and history, but does not elaborate on the
reasons for this conclusion.
4

This information was reported in an email to undersigned counsel by AUSA Weiss. The email
noted that the government has not found any evidence substantiating this speculation by Islams
co-conspirator, however.
7

to communicate with her and her friends was at least in part a reaction to the confusing disconnect
between the real world and what he experienced online, as exacerbated by his untreated obsessivecompulsive disorder.
C. History and Characteristics of the Defendant
Islams history and characteristics before and after his incarceration include several strongly
mitigating factors supporting the recommended sentence. Specifically, Islams youth and mental
health problems before his arrest, and his subsequent maturation, educational progress, and
successful mental health treatment, show that he is a profoundly changed individual who would be
extremely unlikely to return to criminal conduct.
1. Background
Islam was born in Bangladesh on June 24, 1994. His family emigrated to the United States
in 2000 and settled in Bronx, New York. After a fairly normal childhood, Islam developed several
mental health problems in adolescence, including bipolar disorder, chronic depression, obsessive
compulsive disorder (OCD), and attention deficit and hyperactivity disorder (ADHD). None of
these conditions were treated. Around the same time, Islam began immersing himself in online
gaming, chatting, and other activities. These activities functioned as an addiction, both soothing
and exacerbating his mood and attention disorders. As a result, Islam dropped out of high school
and began spending 15-18 hours a day online without interruption or parental intervention.
It was during this period, while he was still a minor, that Islam became involved in the
carding activities that led to his arrest in the Southern District of New York shortly after his 18th
birthday. According to the New York PSR, these activities began in 2009, when Islam was just 14
or 15 years old. For Islam and the other teenagers he met online, the Internet was a powerful and
seductive playground that allowed them to purchase food and electronics with stolen credit card
numbers before they were even old enough to drive, as well as chase fame and attention through
8

celebrity-related doxing and hacks. According to Islam, at the time he viewed these activities as
adolescent pranks, and it was difficult to connect the thrill he received from his virtual activities to
any real-world consequences. That was so even after he was arrested the day after his 18th birthday,
since he was spared the lessons of prison when he was granted pretrial release. This helps explain
why, even while cooperating with the government in his pending case, Islam conspired with his
friends to create the doxing and swatting website.
All that changed when Islams release was revoked and he was forced to experience the
reality of life in prison for the first time. Islam spent the life-changing, formative years that many
young people spend in college in Queens Detention Facility. There he experienced enormous
hardship and was subjected to unusually harsh and punitive conditions, with lifelong affects. For
example, upon his remand into custody, Islam was placed into a unit where he had to share one
toilet and sink with twenty-five other inmates, not to mention insects and vermin. A restless sleeper,
Islam requested to be placed on a bottom bunk for safety reasons. Prison officials ignored this
request, and in 2013 Islam fell off of the top bunk and suffered a herniated disc and nerve damage
in his legs and right arm, causing him chronic pain to this day. PSR 134. On another occasion,
Islam was provided vitamins by correctional staff contaminated by mold. Id. The vitamins caused
damage to the cartilage in his wrists and knees, pain in his clavicle, and discoloration on his skin,
and exacerbated his chronic pain.
These experiences served as a wake-up call and set Islam on the path hes on today. The
change in Islam is evidenced in his educational and emotional progress. After dropping out of
school, Islam earned his GED in December 2013 while incarcerated, PSR 144, and in August
2014 successfully graduated from a twelve-week program through the Focus Forward Project, PSR
145. In a letter to the court, Naomi Chakofsky-Lewy, Coordinator of the Focus Forward Project,

eloquently describes the contributions Islam made to the class and his personal growth and maturity
as a result of his participation in the program. Ex. 7. After working with him for twelve weeks,
Ms. Chakofsky-Lewy describes Islam as an intelligent, caring, supportive man with tremendous
gratitude toward those who have helped him, and expressed her strong belief that Mirs
experiences have made him a wiser, more self-aware, more thoughtful person, and that he will
continue to apply the lessons hes learned for the rest of his life. Id.
Obtaining treatment for his mental health issues played an indispensable role in this
turnaround. As noted in the PSR, Islam now takes Celexa (antidepressant); Depakote (treatment
for bipolar disorder); Wellbutrin (antidepressant); and Effexor (antidepressant). PSR 136. This
has allowed him to experience a level of mental stability he lacked growing up, and freed him of
the compulsive need to seek stimulations through addictions like the Internet and obsessive
romantic attachments. He has also matured in his outlook on life. As he wrote in his letter to the
court, Islam is grateful for his arrest, and credits the government with saving his life. Ex. 8. This
perspective is incredibly mature and shows the tremendous strides Islam has made.
2. Sentencing Implications
This brief discussion of Islams history and characteristics includes several factors noted by
sentencing courts as mitigating factors justifying a downward departure or variance:
(a) Youth
The Supreme Court has cited youth as an important mitigating factor on multiple occasions.
See Gall, 552 U.S. at 58 (Immaturity at the time of the offense conduct is not an inconsequential
consideration.While age does not excuse behavior, a sentencing court should account for age
when inquiring into the conduct of a defendant.) (quoting sentencing court). This is so even for
defendants like Islam, who, having just turned 18, was not technically a minor at the time of these
offenses. See id. (stating that [r]ecent studies on the development of the human brain conclude
10

that human brain development may not become complete until the age of twenty-five, and noting
that the recent [National Institute of Health] report confirms that there is no bold line demarcating
at what age a person reaches full maturity.). As the Supreme Court has explained, [t]he relevance
of youth as a mitigating factor derives from the fact that the signature qualities of youth are
transient; as individuals mature, the impetuousness and recklessness that may dominate in younger
years can subside. Roper v. Simmons, 543 U.S. 551 (2005). Moreover, courts have also
recognized that young or first-time offenders are good candidates for lower sentences based on their
lowered risk of recidivism, as established in Sentencing Commission studies. See, e.g., United
States v. Ross, 557 F.3d 237 (5th Cir. 2009); United States v. Prisel, 316 F. Appx 377 (6th Cir.
2008); United States v. Cabrera, 567 F. Supp. 2d 271 (D. Mass. 2008) (citing studies).
(b) Mental health issues
A history of mental health issues is also an important mitigating factor, for two main
reasons. First, courts recognize that a defendant should be judged less harshly when his criminal
conduct was spurred in part by a mental health condition.5 Second, diagnosis and treatment of a
defendants mental health problems is one of the strongest factors that reduces the risk of

See, e.g., United States v. Ferguson, 942 F. Supp. 2d 1186, 1194 (M.D. Ala. 2013) (noting that
diminished capacity is relevant to 3553(a) factors as well as 5K 2.13 departure and varying
down to sentence of probation where defendant suffered from schizoaffective disorder, PTSD, and
neurocognitive limitations); United States v. Pallowick, 364 F. Supp. 2d 923 (E.D. Wis. 2005)
(imposing sentence of 46 months where defendant was convicted of six armed bank robberies and
Guidelines were 70-87 months because defendants major depressive disorder and anxiety disorder
played major role); United States v. Lighthall, 389 F.3d 791 (8th Cir. 2004) (affirming downward
departure where college student with obsessive compulsive disorder obsessively collected child
pornography); United States v. Ruklick, 919 F.2d 95, 97, 99 (8th Cir. 1990) (affirming downward
departure where defendant suffered from schizophrenic affective disorder that predated drug abuse
and impaired his judgment); United States v. Garcia, 497 F.3d 964 (9th Cir. 2007) (affirming
district courts discretion to consider defendants alleged diminished mental capacity due to drug
addiction); United States v. Menyweather, 431 F.3d 692, 698 (9th Cir. 2005) (affirming 8-level
departure and probationary sentence in embezzlement case in part due to defendants post-traumatic
stress disorder (PTSD)).
11

recidivism.6 Here, all of Islams crimes occurred while his depression, bipolar disorder, OCD, and
ADHD were undiagnosed and untreated.

This undoubtedly contributed significantly to his

impulsive and obsessive behavior toward A.R.T. and other addictive online activities. Having been
treated for the first time in prison, Islam has experienced enormous progress in his mood stability,
and reports feeling like a different person with no psychological connection to the overweight,
depressed, and obsessed individual he was at the age of eighteen. Ex. 8. This strongly weighs in
favor of the recommended sentence.
(c) Lack of prior experience with incarceration
Although the government emphasizes as an aggravating factor that the instant offenses were
committed while Islam was facing charges in his New York case, at that time Islam was a first-time
offender with no prior experience being incarcerated. As many courts have recognized, time in
prison has greater significance for those imprisoned for the first time, and thus, that a lesser prison
term is sufficient to deter a defendant who has never been subject to prior lengthy incarceration.
See, e.g., United State v. Baker, 445 F.3d 987 (7th Cir. 2006) (affirming downward variance to 78
months from 108 months justified in part by judges finding that prison would mean more to the
defendant than one who has been imprisoned before, which resonated with the goal of just
punishment in 3553(a)(2)(A) and adequate deterrence in Section 3553(a)(2)(B)); United States
v. Cull, 446 F. Supp. 2d 961 (E.D. Wis. 2006) (non-guideline sentence of 2 months in jail and 4

See, e.g., United States v. Ross, 557 F.3d 237 (5 Cir. 2009) (reversing sua sponte increase of
original below-guideline sentence where original sentence was based on defendants lack of
criminal history, strong family support, and youth as mitigating factors, and a psychiatrist who had
evaluated the defendant had testified that he had a low likelihood of recidivism); United States v.
Prisel, 2008 WL 4899451 (6th Cir. 2008) (affirming sentence of one day of imprisonment with
three years of supervised release, despite guidelines range of 27-33 months, where district court
cited the defendants age and his mental and emotional condition, and psychiatric testimony
indicated that his risk of recidivism was low).
12

months home confinement, where advisory range was 10-14 months for marijuana offense by
defendant who had never been confined, was sufficient to impress on him the seriousness of his
crime and deter him from re-offending).7
(d) Harsh conditions of confinement
Similarly, where a defendant has spent the pretrial period of incarceration under unusually
harsh conditions, courts recognize that a shorter period of post-sentencing incarceration is
appropriate, both as a matter of justice and deterrence. See, e.g., United States v. Pressley, 345 F.3d
1205 (11th Cir. 2003); United States v. Carty, 263 F.3d 191 (2d Cir. 2001); United States v. Ortiz,
2007 WL4208842 (D. N.J. Nov. 27, 2007); United States v. Mateo, 299 F. Supp. 2d 201 (S.D.N.Y.
2004); United States v. Rodriguez, 214 F. Supp. 2d 1239 (M.D. Ala. 2002); United States v. Bakeas,
987 F. Supp. 44, 50 (D. Mass. 1997). Here, Islams incarceration included 4 months of protective
solitary confinement, and resulted in injuries that will continue to affect him for years, if not for the
rest of his life, including a herniated disc, nerve damage, and damaged cartilage in his wrists and
knees.

In light of the harshness of this period of confinement, additional confinement is

unnecessary both as a matter of punishment and to deter Islam from future crimes, since his own
body will long provide him with painful reminders of this period his life.

See also United States v. Collington, 461 F.3d 805 (6th Cir. 2006) (affirming sixty-month
downward variance where defendant had only been incarcerated for seven months prior to his
crime, despite being in Criminal History Category IV); United States v. Newhouse, 919 F.Supp. 2d
955 (N.D. Iowa 2013) (varying down from career offender range to a ninety-six month sentence
where defendants only two prior convictions resulted in probationary sentences); United States v.
Moreland, 568 F. Supp. 2d 674 (S.D. W. Va. 2008) (rejecting career offender Guideline range of
30 years to life to impose statutory minimum 120 months for a defendant whose remote and nonviolent predicate convictions were cumulatively penalized by less than six months in jail); United
States v. Qualls, 373 F. Supp. 2d 873, 877 (E.D. Wis. 2005).
13

(e) Education and rehabilitation


Courts recognize that efforts by a defendant to educate and rehabilitate himself after an
arrest are relevant considerations in mitigation during sentencing, because a courts duty is always
to sentence the defendant as he stands before the court on the day of sentencing. United States v.
Bryson, 229 F.3d 425, 426 (2d Cir. 2000). See also Pepper v. United States, 131 S. Ct. 1229,
1242 (affirming resentencing based on up-to-date picture of [defendants] history and
characteristics). Here, Mr. Islams arrest helped him escape the fog of his former life, where he
was a high school dropout spending 15-18 hours a day on the internet gaming, chatting, and
hacking, spurring him to grow into a mature young man who obtained his GED, addressed his
psychiatric issues, and successfully graduated from the Focus Forward Project. Exs. 7, 8.
(f) Cooperation and its long-term consequences
Finally, above and beyond the sentencing benefit defendants are entitled to receive under
5K1.1, courts recognize that a history of substantial assistance by a defendant is a relevant
sentencing characteristic both because it reflects a turn away from criminal activity by the
defendant, and because it often carries risks to the defendants safety that will persist long after his
sentence has been completed. Here, Islam has cooperated substantially in two cases, demonstrating
his complete rejection of his criminal past and subjecting him to double the risk of future retaliation.
This ongoing risk, and the rejection of criminal associations it reflects, should be considered as a
mitigating personal characteristic justifying a substantial downward variance.
D. The Need to Reflect the Seriousness of the Offense, to Promote Respect for the Law,
and to Provide Just Punishment for the Offense
The guidelines range in this case41 to 51 months for the lowest criminal history
categoryadequately reflects the seriousness of the offenses in this case, promotes respect for the
law, and provides for just punishment. In seeking a sentence of time served, Islam is asking only

14

for a small departure from this range of four months in recognition of cooperation the government
has deemed substantial enough to merit the filing of a 5K1.1 motion. The government, on the
other hand, asserts that the guidelines understate the seriousness of Islams offenses to such a degree
that the Court should take the extraordinary step of giving a mid-range guidelines sentence in a case
involving a 5K1.1 motion.

To support this argument, the government describes what the

guidelines range would be in a series of alternative scenarios, such as if Islam had been prosecuted
serially in Arizona and the District rather than together, or if he had been sentenced to sixty days or
more in New York, or if the time he has spent in prison were not to be credited to this case.
But even granting the government the benefit of all of the alternative scenarios it proposes,
its recommended sentence is still too high as measured by the average sentence reductions in cases
involving a 5K1.1 motion. The maximum range discussed by the government would have
occurred had Islam (i) been sentenced to more than 60 days in New York, resulting in a criminal
history category of II; (ii) sentenced in this case, with a guidelines range of 30-37 months based on
a level 18 and criminal history category of II; and then (iii) sentenced in Arizona, with a guidelines
range of 37-46 months, based on a level 19 and a criminal history category of III. Under this
scenario, Islams combined sentencing range for the instant offenses, if sentenced consecutively,
would be 67-83 months. Applying the average sentencing reduction in 5K1.1 cases of 52.6 % to
the bottom range of this figure results in a sentence of 32 months. Since under this scenario, Islam
would have 60 fewer days of credit in this case than he actually received, his total effective sentence
would be 34 months in this casealmost exactly time-served, and less than time-served after
factoring in Islams credits for good time. Accordingly, even under the governments argument,
time served is an appropriate sentence once Islams substantial cooperation is taken into account.

15

More fundamentally, however, there is no reason to indulge the government in its


multiplicity of hypothetical guidelines calculations under alternative factual scenarios, since each
of those scenarios ignores several equally pertinent factors cutting against the government. For
example, a sentence for Islam of 60 days in New Yorkan arbitrary number picked to increase
Islams hypothetical criminal history scorewould have exceeded the sentences of other
defendants in the New York case, many of which received probationary sentences. Islams sentence
was thus not as extraordinarily light and charitable [a] sentence as the governments argument
makes it sound.8 Moreover, the great reduction in Islams sentence reflected the high value the
government received from Islams cooperation, as perceived by the trial court and probation.
Having received those benefits, the government cannot simply wish that the trial court viewed them
as less valuable. Finally, the governments guidelines math depends on layering simultaneous
criminal conduct committed before Islam had any criminal convictions in order to increase Islams
criminal history category for each offense; but as explained above, courts regularly vary downward
when a defendant has not spent time in prison prior to committing an offense, since in such cases
the criminal history category score overstates the defendants exposure to the criminal justice
system and the deterring effects of prison. Thus, it is unlikely that there would have been any
practical effect of prosecuting Islam serially in two jurisdictions as opposed to one, since any
pragmatic sentencing judge would have treated like facts the same.
In addition to ignoring these countervailing factors, the governments argument forgets its
own recommendation of a similarly dramatic departure from the guidelines in another high profile
hacking case prosecuted by the same New York office. In United States v. Monsegur, 11-cr-666

Of course, the sentence also included 36 months of supervised release, which subjects Islam to
the possibility of further incarceration should a violation of his conditions be proven by a mere
preponderance of the evidence.
16

(LAP) (S.D.N.Y. 2014), the defendant was a key leader of the Lulz Security hacking groupthe
same group whose farewell message was copied by Islams group on their Secret Files website.
Ex. 3. Like Islam, Monsegur initially violated his release conditions and was remanded back into
custody. Ex. 6 at 7. He was released seven months later to continue cooperating, and eventually
earned a 5K1.1 motion from the government. In the motion, the government recommended that
Monsegur be sentenced to time served, which reflected a departure of 252 monthsalmost twice
Islams departure, and approximately 97% off his guidelines range of 259-317 months. Notably,
this range was itself lowered by the transfer and simultaneous resolution of four other cases against
Monsegur from other district courts, the very practice the government cited as an aggravating factor
in its memorandum here.
In light of Monsegurs equally extraordinarily light and charitable sentence, Govt Mem.
at 21, which was obtained at the governments request, the governments assertion that [s]uch a
dramatic departure was never contemplated by the government when negotiating the plea
agreement in this case, id., rings hollow. Indeed, unlike Monsegur, an older hacker with deeper
connections to the hacking world and many opportunities to earn a successful legal living, Islam
was a teenager struggling alone in his room with several mental health conditions when he
committed the carding offenses in the New York prosecution. Nothing in the guidelines range
agreed upon by the parties and probation understates the seriousness of his offenses, and there is no
reason that the 5K1.1 motion he earned should be rendered a nullity by the mid-range guidelines
sentence requested by the government.
E. The Need to Afford Adequate Deterrence and to Protect the Public
The government asserts without citation that [s]watting and doxing are both increasingly
common offenses, that must be severely punished to put [w]ould be offenderson notice that
[they] will be treated with the severity they deserve. Govt Mem. at 23. Happily, the opposite
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is actually true. Since Islams arrest, the Federal Communications Commission (FCC) issued two
rulings allowing telecommunication companies to refuse to relay 911 communications by
unregistered users, which was the way the vast majority of swatting perpetrators hid their identities.
See Ex. 4 (Order of Acting Chief, Consumer and Governmental Affairs Bureau, Federal
Communications Commission (June 10, 2015), CG Docket Nos. 12-38, 03-123). According to
testimony submitted to the FCC by Sprint, as a result of this simple policy change, swatting calls
made using IP Relay service were completely eliminated. Id. (emphasis added) (citing Sprint
Corporation, Request for Extension of Interim Waiver, CG Docket Nos. 12-38, 03-123 (filed Apr.
30, 2015) (Sprint Waiver Extension Request)). Sprint, the company that was used by Islam and his
co-conspirators in this case, described this policy change as the absolute solution to the swatting
problem. Id. (quoting Sprint Waiver Extension Request).
Moreover, even if the swatting problem were not substantially resolved, there is no reason
to believe that requiring Islam to serve 41 months rather than time served (i.e., effectively 37
months) would deter any would-be criminal contemplating doxing or swatting. While many believe
that lengthier sentences have a greater deterrent effect, the empirical research shows this to be
untrue. Three National Academy of Science panels . . . reached that conclusion, as has every major
survey of the evidence. Michael Tonry, Purposes and Functions of Sentencing, 34 CRIME AND
JUSTICE: A REVIEW OF RESEARCH 28-29 (2006). That is because most potential criminals are not
generally aware of penalties for their prospective crimes, do not believe they will be apprehended
and convicted, and simply do not consider sentencing consequences in the manner one might expect
of rational decision makers. Id. Indeed, in one of the best studies of specific deterrence, which
involved federal white collar defendants in the pre-Guidelines era, no difference in deterrence was
found even between probation and imprisonment. See David Weisburd et. al., Specific Deterrence

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in a Sample of Offenders Convicted of White-Collar Crimes, 33 CRIMINOLOGY 587 (1995). These


conclusions are especially applicable to the group most likely to commit doxing or swatting
teenage first-time offenderswho already have low rates of recidivism.
Moreover, the requirement that sentences reflect the publics need for protection must take
cooperation into account if it is to ensure that limited prison resources are spent on those doing the
most harm to the public. In other words, criminals do not just need to be deterred, they need to be
encouraged to dismantle criminal conspiracies. A mid-range guidelines sentence in a case where a
defendant provided substantial assistance, as the government requests, would leave would-be
cooperators with little incentive to take on the lifelong risks associated with cooperation.
F.

The Need to Avoid Unwarranted Sentencing Disparities


Section 3553(a) directs courts to consider the need to avoid unwarranted sentencing

disparities. The government asserts in a footnote that it is unaware of any individuals sentenced
for conduct similar to Islams, particularly given the unusual sentence he received for that
conviction. Govt Mem. at 24 n.1. But in two recent cases involving multiple incidents of
swatting, the defendants received far less time that Islam has already served. See United States v.
Tollis, No. 15-cr-00110 (D. Conn. 2015) (1 year and 1 day in prison for numerous swatting incidents
in 2014 affecting schools and universities); James Eli Shiffer, Canadian teen sentenced after
swatting, doxxing across North America, STAR TRIBUNE (July 25, 2015), available at
http://www.startribune.com/canadian-teen-sentenced-after-swatting-doxxing-across-northamerica/318537651/ (last accessed July 8, 2016) (15 months in prison for multiple incidents of
doxing, swatting, and cyberstalking). And in a third case, a federal defendant received a 41-month
sentencethe amount sought by the government herewithout the benefit of a 5K1.1 motion and

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the concomitant risks to a defendants safety. See United States v. Morgenstern, No. 15-cr-00217
(D. Minn. 2015).9
Similarly, most of the hackers received less time than Islam is requesting in the Lulz
Security case discussed above, including: Cody Kretsinger (1 year imprisonment, 1 year home
detention); Raynaldo Rivera (1 year and 1 day imprisonment, 13 months home detention); Matthew
Flannery (15 months home detention); and the ringleader and chief cooperator, Hector Xavier
Monsegur (7 months). See United States v. Monsegur, 11-cr-666 (LAP) (S.D.N.Y. 2014). Nor was
Islams sentence in the New York case unusual, since several defendants received sentences of
time served or probation in the case (including Christian Cangeopol (3 years probation); Sean
Harper (time served); Joshua Hicks (2 years probation); Michael Hogue (5 years probation); and
Peter Ketchum (2 years probation)), and pretrial services had recommended time served in the PSR.
G. The Kinds of Sentences Available
Finally, 3553(a) requires the Court to creatively consider the kinds of sentences
available. The consideration includes choices such as prison versus a halfway house or probation,
as well as where educational or vocational training, medical care, or other correctional treatment
can be provided in the most effective manner. 3553(a)(2)(D). See also United States v. Martin,
363 F.3d 25, 49-50 & n.39 (1st Cir. 2004); United States v. Derbes, 369 F.3d 579, 581-83 (1st Cir.
2004); United States v. Gee, 226 F.3d 885, 902 (7th Cir. 2000); United States v. Ryder, 414 F.3d
908, 920 (8th Cir. 2005). As noted in the PSR, Islam could benefit from vocational or educational
training and mental health treatment, and could best access those services while on supervised
release. In addition, community service is an underutilized tool that serves the public interest while

In one other federal case where the defendants received more time (60 months), the facts were
especially egregious: the defendants committed over 250 swattings resulting in at least two
injuries and losses of between $120,000 and $250,000. See United States v. Rosoff, No. 3:07-cr00196 (N.D. Tex. 2008). And even in that case, one defendant received a 30-month sentence.
20

allowing the defendant to learn vocation-related skills in a job-like environment. According to a


2005 report by U.S. Probation and Pretrial Services, community service sentences offer a flexible,
personalized, and humane sanction, a way for the offender to repay or restore the community, and
are a win-win proposition for everyone involved. Probation and Pretrial Services Division of
the Administrative Office of the U.S. Courts, COMMUNITY SERVICE SENTENCES (2005). As noted
in the report, community service addresses the traditional sentencing goals of punishment,
reparation, restitution, and rehabilitation . . . It restricts offenders personal liberty . . . allows
offenders to atone or make the victim whole in a constructive way [and] may be regarded as . . .
a form of symbolic restitution when the community is the victim. Rather than impose more
unproductive time in jail, as the government requests, the defense respectfully submits that these
other kinds of sentences better achieve the statutory sentencing goals of 3553(a)(2).
II. Recommended Sentence
There is a uniform and constant federal judicial tradition of considering every convicted
person as an individual and every case as a unique study in the human failings that sometimes
mitigate, sometimes magnify, the crime and the punishment to ensue. Gall, 552 U.S. at 52
(quotation omitted). As explained above, despite the undisputed seriousness of these offenses, there
are several mitigating characteristics in this case that help explain why, at the age of 18, Islam did
not fully appreciate the traumatic impact his behavior had on A.R.T. and his doxing and swatting
victims, and why, having been exposed to unusually harsh prison conditions and received effective
mental health treatment, he has changed. Accordingly, the defense respectfully recommends a
sentence of time served (effectively 37 months with good time credits) which is more than many
defendants received for similar conduct, and represents a less than 10% downward departure for a
defendant who provided substantial assistance to the government and earned a 5K1.1 motion.

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III. Conclusion
For the foregoing reasons, Defendant Mir Islam prays that the Court will sentence him to
time served followed by 36 months of supervised release, with the condition that he complete
vocational training and continue receiving mental health treatment.

Respectfully submitted,

July 8, 2016

By: /s/ Matthew J. Peed

..

Matthew J. Peed (D.C. Bar No. 503328)


CLINTON BROOK & PEED
1455 Pennsylvania Ave. N.W., Suite 400
Washington, DC 20004
(202) 621-1828 (tel)
(202) 204-6320 (fax)
Attorney for Defendant Mir Islam

Certificate of Service
I, Matthew J. Peed, hereby certify that on July 8, 2016, I caused a true and correct copy of
Defendants Memorandum in Aid of Sentencing and accompanying exhibits to be served upon the
attorney for the United States, Assistant United States Attorney Corbin Weiss, via electronic mail
to: corbin.weiss@usdoj.gov.
/s/ Matthew J. Peed

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